Papadoulis v Pappas and Associates (A Firm)

[2008] WADC 166

PAPADOULIS -v- PAPPAS AND ASSOCIATES (A FIRM) [2008] WADC 166

Link to Appeal : [2009] WADC 22

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 166
Case No:	CIV:1144/2006	Heard:	NOT APPLICABLE
Coram:	REGISTRAR KINGSLEY	Delivered:	11/11/08
Location:	PERTH
No of pages:	4	Judgment Part:	1 of 1
Result:	Allowed in part
PDF Version

Parties:	EMMANUEL MICHAEL AND MARGARET VALMA PAPADOULIS PAPPAS AND ASSOCIATES (A FIRM) EMMANUEL MICHAEL PAPADOULIS
Catchwords:	Practice Application to amend statement of claim Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : PAPADOULIS -v- PAPPAS AND ASSOCIATES (A FIRM) [2008] WADC 166 CORAM : REGISTRAR KINGSLEY HEARD : NOT APPLICABLE DELIVERED : 12 NOVEMBER 2008 FILE NO/S : CIV 1144 of 2006 BETWEEN : EMMANUEL MICHAEL AND MARGARET VALMA PAPADOULIS

Plaintiffs

AND

PAPPAS AND ASSOCIATES (A FIRM)
Defendant

EMMANUEL MICHAEL PAPADOULIS
Third Party

Catchwords:

Practice - Application to amend statement of claim - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Allowed in part

Representation:

Counsel:

Plaintiffs : Mr S Leslie
Defendant : Mr S Popperwell
Third Party : No appearance

Solicitors:

Plaintiffs : Talbot Olivier
Defendant : Pynt & Partners
Third Party : In person

Case(s) referred to in judgment(s):

Nil
(Page 3)

1 REGISTRAR KINGSLEY: The plaintiff's claim, as pleaded in the statement of claim indorsed on the writ dated 14 June 2006 is that the defendant was the accountant for Feature Australia Pty Ltd ("Feature"). The plaintiffs were the directors of Feature.

2 Feature had failed to pay various tax liabilities and as a result of that failure the Commissioner of Taxation (Commissioner) had issued a Notice under s 222AOC Income Tax Assessment Act 1936. The notices required Feature or the plaintiffs as director to;

• discharge the liability;

• enter into a written agreement with the Commissioner to pay the liability;

• place Feature into administration; or

• wind up Feature.

3 The plaintiffs allege the defendants breached the terms of engagement, or therefore alternatively were negligent, in relation to the advice given by the defendant. By reason of that advice the plaintiffs failed to comply with the notices. As a consequence the Commissioner issued proceedings and obtained judgment in the sum of $202,056.20 less credits of $2,760.16.

4 The plaintiff now seeks to further amend the statement of claim in terms of a minute dated 22 August 2008. The defendants oppose the application and in particular oppose the amendments at pars 12(e), 13 and 18 to 22.

5 I have already disallowed pars 18 to 22. In those paragraphs the plaintiffs seek to plead a case for Feature. In those paragraphs the plaintiffs sought to plead that the defendant failed to advise Feature that it was probably engaging in insolvent trading and the defendant failed to advise Feature that it was in the best interests of Feature, and its directors, shareholders and creditors, that Feature be placed in voluntary administration. The plaintiffs plead that had they been properly advised they would have taken steps to place Feature into administration.

6 The steps the plaintiffs were to take, and the purported effect of the lack of advice in relation to Feature relates to the plaintiffs in their capacity as directors of Feature.

7 This action is a personal action by the plaintiffs against the defendants. In my opinion the action sought to be pleaded in pars 18

(Page 4)

to 22 is entirely new, and plead a cause by the plaintiffs in a different capacity. For this reason I have disallowed the amendments to pars 18 to 22.

8 Paragraph 12 pleads the breach of the defendant's engagement, and the failure to exercise reasonable care. There are particulars of those breaches. Particular 12(e) seeks to particularise a failure to communicate in that the defendant failed to advise the plaintiffs that Feature was trading insolvent, and advise the plaintiffs that Feature ought to be placed in voluntary administration.

9 Paragraphs 13.3 goes on to plead that the defendant had prepared the tax returns for Feature for the years 1992 to 2002 and knowing that Feature had a deficiency in net assets and had defaulted on a repayment arrangement with the Commissioner, there was an expectation that the defendants would properly advise the plaintiffs.

10 In my opinion the issues raised in particular 12(e) and in par 13.3 are not new. The responses to the various requests for particulars of claim raise the issues now sought to be pleaded. They do not catch the defendant by surprise. I will allow the amendments to particular 12(e) and to par 13.3.

11 During the course of submission defendant's counsel did not press any challenge to the amendment of par 16.

12 I will hear counsel on the form of orders and costs.